September 15, 2005

Workers Comp Conundrum: Permanently Disabled but Still Working

Steven Trucinski, an employee of International Paper Co. in Ohio, was injured in a chemical explosion on October 15, 1998. He sustained severe trauma to his left lower extremity, as well as burns over large portions of his chest, back, and right upper extremity. His leg was amputated above the knee.

Under Ohio law, loss of two body parts automatically entitles an injured worker to permanent total disability benefits. Here's the admittedly gruesome qualifying definition in the comp statute: The loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof, constitutes total and permanent disability, to be compensated according to this section. Virtually every state has a similar listing.

The court had to confront the issue of just how many body parts Trucinski lost. Does the loss of a limb above the knee involve a single limb or a leg and a foot? In their opinion upholding the claimant, the court cited a definition of a leg in Webster's Third International Dictionary: "[A] limb of an animal used esp[ecially] for supporting the body and for walking: as a: the part of the vertebrate limb between the knee and foot." If the leg is between the knee and the foot, then any loss above the knee involves two body parts, not just one.

Macabre Math
The gruesome details are compounded by what turns out to be a more positive than expected outcome for the claimant. As it happens, Trucinski recovered from his injuries, was fitted with a prosthetic limb and subsequently found employment (but not at International Paper). Despite his ability to work, he continues to collect permanent total disability benefits. So his former employer appealed to the Ohio Supreme Court, arguing that Trucinski's ability to earn a living proved he was not "permanently and totally disabled." The court ruled in Tracinski's favor, citing the language of the statute and their own unwillingness to intervene in a case by overturning preceeding rulings.

What are we to make of this high stakes dispute? On the one hand, employers and insurers, confronted with paying lifetime benefits, argue that employability -- not loss of specific body parts - should be the determining factor for benefits. On the other hand, representatives of labor, unable to secure well-deserved "pain and suffering" benefits under workers comp, point to the extreme injuries and demand justice for the employee. The court, planted squarely in the middle, upholds the benefits as outlined in the statute, despite what appears to be a huge contradiction: the man with a "permanent and total disability" is actually able to work.

A New paradigm?
Workers comp in this country is nearly 100 years old. When the statute wound its way through each of the states, it was a radical and long-overdue idea: a no-fault system which protected employers from lawsuits, while it ensured that lost wages, medical bills and scheduled benefits (scarring, loss of limbs, etc) were paid to injured employees. It's the first and only form of universal disability insurance protecting almost every American worker. As we move into the new century, it's becoming clearer that the industrial model lying at the heart of workers comp no longer reflects the realities of the new working world.

In today's workforce, people change jobs frequently. There are massive layoffs and restructurings in virtually every industry. Yesterday's corporate giant might be out of business today. Workers, caught in the middle of all this turmoil, might have to retrain three or four times during their careers. A person with one set of limited skills is simply unprepared for the challenges of today's workplace.

The comp benefit structure, visible in stark outline in today's case from Ohio, was based upon the old industrial model of employment. Fifty years ago, if a worker lost two body parts, he or she was totally disabled, unable to pursue gainful employment. Modern medicine, combined with high tech applications, create myriad possibilities even for people with severe disabilities.

With all the changes taking place in the workplace, it may well be time to re-invent workers comp. Rather than paying people not to work, let's use our resources to enable people to find gainful employment. Let's focus on skills development rather than disability. It might open the workforce to people who face artificial barriers. And it might help us focus on the real bottom line: the ability of people to earn a living wage in a job worth doing. That would surely involve a paradigm shift from the current state-by-state morass that is the workers comp system in America.



I respectfully disagree with your premise. Your post implies that it is unfair for the worker with the amputated leg to collect workers compensation while he is still working. You don't mention if the worker is earning less now due to the amputation. Shouldn't we be happy he is back to work at any job paying taxes? Rather than a conundrum, this could be a shining example of how well the current system works. I also don't buy the claim that the workforce is so radically different today to warrant a change from the old industrial model. For every dangerous factory job that no longer exists, I'll show you an equally dangerous job being done by undocumented workers in our underground economy. Our nation has not yet become a homoginized white collar workforce sitting in cubicles, as so clearly shown by the tragic accident in this Ohio case.

Thanks for your comments. I think we may agree more than we disagree. The conundrum for me is that this particular worker is able to work and still collect the indemnity which protects the income stream of people who cannot work. For all we know, he may make more at his new job -- it doesn't matter, because he qualifies for permanent benefits based upon the simple math of body parts (I do think the body-part math is based upon an assumption that the seriously injured worker will not be able to find any gainful employment). As for the undocumented workers -- usually lacking in transferable skills -- you are absolutely correct. They not only suffer disabling injuries, they have less access to any benefits, let alone the permanent benefits to which they might be entitled.
Please keep reading and keep us on our toes!


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This page contains a single entry by Jon Coppelman published on September 15, 2005 3:18 PM.

Walmart Meets Katrina: Responding to Catastrophe was the previous entry in this blog.

Katrina: Who Pays? (part 2) is the next entry in this blog.

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